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Immunity and leniency

Immunity and leniency programmes

Is an immunity and leniency programme available for companies? If so, how does it operate?

Undertakings and private individuals may apply for leniency where they can provide evidence of their participation in a cartel. The Authority for Consumers and Markets (ACM) will grant immunity from fines where:

  • the applicant is the first to submit a request for immunity from fines with regard to a cartel;
  • the application concerns a cartel into which the ACM has yet to launch an investigation;
  • the applicant provides the ACM with information in its application that enables the ACM to perform a targeted inspection;
  • the applicant has not coerced another undertaking into participating in the cartel; and
  • the applicant complies with the obligation to fully and continuously cooperate with the ACM.

In addition, the ACM will grant immunity where:

  • the applicant has not coerced another undertaking into participating in the cartel and cooperates with the ACM;
  • the application concerns a cartel into which the ACM has already launched an investigation, but the ACM has yet to send a statement of objections to any of the parties involved; and
  • the application provides the ACM with documents that stem from the period of the practice in question which were not already in its possession, on the basis of which the ACM can prove the cartel’s existence.

Can the enforcement authority decline or withdraw leniency? If so, on what basis?

The ACM will decline leniency if it believes that the request does not meet the criteria for immunity or a fine reduction. In this respect, the ACM is very critical about the added value of evidence provided by a leniency applicant in an already ongoing investigation. If the ACM believes that the added value is insufficient, it will reject the application.

A grant of leniency will be rendered null and void if the applicant fails to fulfil the obligations of the grant – in particular, cooperation, truthfulness and secrecy. In such cases, the ACM may use the information that it received from the leniency applicant as evidence and impose a fine on the leniency applicant as if the leniency application had not been submitted.

Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?

The ACM will grant a leniency applicant a fine reduction of between 30% and 50% if:

  • immunity from fines is not available (because another undertaking has already applied for immunity and/or the information that it can provide is insufficient to obtain immunity);
  • the ACM has not sent a statement of objections to any of the parties involved in the cartel;
  • the applicant was the first to submit an application for a fine reduction that contained information with significant added value as to the cartel; and
  • the applicant has complied with its obligation to cooperate.

In addition, the ACM will grant a leniency applicant a fine reduction of between 20% and 30% if:

  • immunity from fines is not available;
  • the ACM has not sent a statement of objections to any of the parties involved in the cartel;
  • the applicant was the second party to submit an application for a fine reduction that contained information with significant added value as to the cartel; and
  • the applicant has complied with its obligation to cooperate.

Fine reductions of up to 20% are available for all subsequent applicants, provided that they meet similar criteria as already outlined above.

What benefits (if any) are available for employees and former employees of a company that seeks leniency?

In its leniency application, a company can cover its present employees if they risk personal fines. Coverage of former employees is not automatically possible, but can be discussed with the ACM’s Leniency Office.

Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?

Individuals who believe that they risk personal fines can seek leniency in the same way as companies. They can do so only on their own behalves and not for their (former) employer.

Have there been any notable recent cases in which a leniency application was the subject of adjudication?

In Insulating double glazing, the Rotterdam District Court ruled that leniency applications should be regarded with caution, as applicants may be inclined to incriminate their competitors more than themselves. Therefore, leniency applications that are not supported at least in part by other types of evidence cannot constitute sufficient proof of participation in an infringement. Further, the court found that the ACM had asked leniency applicants leading questions during various interviews. For that reason, the leniency statements could not be regarded as evidence. The court thus held that the ACM could not prove that an infringement had occurred and annulled the fines for all undertakings (including the leniency applicants). The ACM did not appeal this judgment.

In Flour, the Trade and Industry Appeals Court confirmed that a single leniency statement unsupported by other evidence is insufficient to prove that an undertaking has committed an infringement. However, the court rejected the Rotterdam District Court’s finding that a leniency statement must always be covered by a different form of evidence. Two concurring statements by different leniency applicants therefore constitute sufficient proof of an infringement.

Criminal liability

Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?

Not applicable.

Application procedure

What is the procedure for a leniency application?

A leniency application may be submitted to the ACM’s Leniency Office by email, fax, mail, telephone or in person. The Leniency Office is a distinct service of the ACM, separated from other services by ‘Chinese walls’. An application must be submitted in writing, but the Leniency Office may allow an oral statement.

The Leniency Office will subsequently decide whether the application meets the criteria for a grant of leniency. If so, the Leniency Office will issue a conditional grant of leniency (indicating the category of fine reduction for which the applicant qualifies). If the Leniency Office rejects the application, the applicant will not qualify for leniency, but the application will not be shared with other services within the ACM and hence does not become part of the ACM’s file.

What is the typical timeframe for consideration of a leniency application?

There is no typical timeframe for leniency applications; this can vary considerably from case to case and is dependent, in particular, on the delay for the completion of a marker that the Leniency Office is prepared to grant. After the completion of a marker, the Leniency Office will normally decide on an application within a few weeks.

What information and evidence is required?

In its application, the applicant must:

  • confess that it participated in a cartel;
  • provide all of the information in its possession regarding the cartel and its functioning and the market on which the cartel operates; and
  • provide the names and contact details of the other cartel participants and their representatives.

What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?

Until the ACM issues a statement of objections, no information is revealed to other parties. Upon the issuance of the statement, the case file will be made available to its addressees. That case file will contain a copy of the leniency request and supporting evidence, from which business secrets will have been deleted.

What level of cooperation is required from applicants?

Until the ACM’s decision to impose a fine becomes final with respect to all of the practices involved in the cartel, a leniency applicant must fully and continuously cooperate as required in the interest of the investigation or the proceedings. This includes the obligation to:

  • keep employees available for interviews;
  • proactively provide any new evidence at the applicant’s disposal; and
  • maintain full secrecy regarding the application and its contents until the ACM has issued a statement of objections.

Failure to comply with the above obligations may result in an annulment of the grant of leniency.

What confidentiality protection is offered to applicants?

Full confidentiality is guaranteed – and required – from the applicant until the ACM issues a statement of objections, after which a non-confidential version will be made available to the other case parties. Once the ACM has issued its final decision, the fact that a leniency application has been submitted (and by whom) will be made public, along with a description of the contents in the application, as part of the decision’s reasoning. However, a copy of the application will not be published and the ACM will categorically deny requests for access to copies of leniency applications by third parties that are not addressees of the decision.

Can the company apply for a marker? If so, under which conditions?

A leniency applicant that submits an incomplete application may be eligible for a marker if the application offers, in the Leniency Office’s view, a concrete basis for a reasonable suspicion of the applicant’s involvement in a cartel. If the Leniency Office establishes a marker for a leniency applicant, it will specify a time limit within which the applicant must complete its application. If the leniency application is completed within this time limit, the application will be deemed to have been completed from the moment that the marker became applicable. If the applicant fails to do so, the application will be rejected.

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